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A quarterly reportto clients
and attorneys.
VOLUME 04NUMBER 1
Use of OutlawedForceps Delivery Results In a$63 Million Verdict fter deliberating less than a day, a jury in the 15th Circuit
Court of Palm Beach County has awarded a $63 million ver-
dict to six-and-a-half year old Luke Korzeniowski and his
parents, Jennifer & Derik Korzeniowski of Columbus, GA.
The Korzeniowski family was represented by Searcy
Denney Scarola Barnhart & Shipley attorneys Chris Searcy
and David White.
The defendants in the lawsuit – Korzeniowski vs.
Eagleman & Bethesda Memorial Hospital – were Dr.
Attila Eagleman and Bethesda Memorial Hospital, both of
Boynton Beach, FL.
In the six-week trial before Circuit Court Judge David
Crow, it was revealed that Dr. Eagleman had decided to
deliberately induce the birth of Luke Korzeniowski, de-
spite the fact that his mother was having a normal preg-
nancy. Furthermore, Dr. Eagleman decided to take the
baby by utilizing a high forceps delivery that has been
outlawed in obstetric practice for more than 40 years be-
cause of the large number of babies that were born brain
damaged from this procedure. The induction and high
forceps delivery ocurred on October 30, 1997.
As a direct result of this high forceps delivery, Luke
Korzeniowski was born with severe brain damage. He
spent 19 days in the hospital’s neonatal intensive care
unit fighting for his life, his hind brain full of blood. Since
then, young Luke has had to endure 14 different brain
and spinal surgeries and will need around-the-clock care
for the rest of his life.
In 1995, the Florida
Agency for Health Care
Administration (AHCA) in-
vestigated Atilla Eagleman,
M.D. and filed an adminis-
trative complaint against
him on October 31, 1995.
Count I of the administra-
tive complaint alleged that
Dr. Eagleman was guilty of
gross or repeated mal-
practice relating to the pre-
natal care of a 37 year old
woman. Count II alleged
that Dr. Eagleman was
guilty of making deceptive,
untrue or fraudulent representations in the
practice of medicine. Count III alleged that Dr.
Eagleman failed to keep written medical records justi-
fying his care and treatment of his patient. Dr.
Eagleman signed a Consent Agreement with AHCA on
October 28, 1996 agreeing as follows: the charges
were not contested; pay a fine of $1,500; receive a
Reprimand from the Florida Board of Medicine; serve
a term of Probation for one year; and take a course in
medical record keeping. On December 24, 1996, the
Florida Board of Medicine issued its final order approving
the Consent Agreement, but dismissing Count II, con-
verting a Reprimand to a Letter of Concern and deleting
the term of Probation. Continued on page three.
LukeKorzeniowski
SEARCY DENNEY SCAROLA BARNHART & SHIPLEY P.A.
SEARCY DENNEY SCAROLA BARNHART & SHIPLEY, PA 2
M
Ignoring PrecautionsResults In Fatal CrashMoments After Safety Meeting
OF COUNSEL NEWSLETTER VOLUME 04 NUMBER 1
2139 PALM BEACH LAKES BLVD.WEST PALM BEACH
FLORIDA 33409
TOLL FREE: 800-780-8607LOCAL: 561-686-6300
THE TOWLE HOUSE517 NORTH CALHOUN STREET
TALLAHASSEEFLORIDA 32301
TOLL FREE: 888-549-7011LOCAL: 850-224-7600
WWW.SEARCYLAW.COM
ATTORNEYS AT LAW:
ROSALYN SIA BAKER-BARNESF. GREGORY BARNHARTLAWRENCE J. BLOCK, JR.
EARL L. DENNEY, JR.SEAN C. DOMNICK
JAMES W. GUSTAFSON, JR.DAVID K. KELLEY, JR.
WILLIAM B. KINGDARRYL L. LEWIS
WILLIAM A. NORTONDAVID J. SALESJACK SCAROLA
CHRISTIAN D. SEARCYHARRY A. SHEVINJOHN A. SHIPLEY
CHRISTOPHER K. SPEEDKAREN E. TERRY
C. CALVIN WARRINER IIIDAVID J. WHITE
PARALEGALS:
VIVIAN AYAN-TEJEDALAURIE J. BRIGGSDEANE L. CADY
DANIEL J. CALLOWAYEMILIO DIAMANTISDAVID W. GILMORE
TED E. KULESAJ. PETER LOVE
CHRISTOPHER J. PILATOROBERT W. PITCHER
WILLIAM H. SEABOLDKATHLEEN SIMONSTEVE M. SMITHWALTER STEIN
BRIAN P. SULLIVANKEVIN J. WALSH
JUDSON WHITEHORN
MANAGER:JOAN WILLIAMS
EDITOR:JUDSON WHITEHORN
ASSOCIATE EDITOR:ROBIN KRIBERNEY
CREATIVE DIRECTOR:DE CARTERBROWN
NOTE: The accounts of recenttrials, verdicts and settlements
contained in this newsletterare intended to illustrate the
experience of the firm in a varietyof litigation areas. Each case isunique, and the results in one
case do not necessarily indicate thequality or value of any other case.
Omitting clients’ namesand/or defendants’ names are the result
of requests for anonymity.
egan Hudson was a 17-year-old student at
North Marion High School in Ocala. On March
12, 2001, Megan was an unbelted passenger in
a vehicle driven by her boyfriend, Albert, travel-
ing southbound on four-lane U. S. Highway 441
near Belleview. Also traveling southbound, on
the inside lane, was a large van directly in front
of Albert’s vehicle, blocking his view of the
roadway ahead.
As both vehicles neared the entrance to the
Spruce Creek Communities (a development of
Del Webb Corporation), a slow-moving Cater-
pillar front-end loader was also driving south-
bound on Hwy. 441 hauling a concrete drain-
age culvert toward another location on Spruce
Creek properties.
The loader had no
flashing lights, no
‘slow-moving ve-
hicle’ sign, and no
trailing vehicle to
provide warning of
the traffic barrier that
had been created.
As the van, with
Albert’s vehicle fol-
lowing, abruptly
came upon the slow-
moving loader, the
driver of the van swerved to go around the
loader. Albert had no opportunity to stop or to
swerve, and his car crashed into the rear of the
loader. Albert was seriously injured. His young
girlfriend, Megan, was killed.
The loader operator and his supervisor had made
a deliberate decision to transport the concrete
culvert via busy Hwy. 441 instead of simply
transporting the load within Spruce Creek prop-
erties. Under oath, the driver testified:
Q: If you had to make the decision yourself
about whether or not to drive that front-end
loader onto Hwy. 441 in order to go south,
you wouldn’t have done it, would you?
A: Well, I wouldn’t have wanted to.
Q: You wouldn’t have wanted to because it
was unsafe to drive that big vehicle on Hwy.
441, wasn’t it?
A: Yes, sir.
Particularly interesting is that moments
before this crash, the loader operator and
his supervisor attended a company safety
meeting. Immedi-
ately following
the safety meeting,
the supervisor
drove his pickup
truck leading the
loader onto Hwy.
441. Experts
agreed that the
pickup truck
should have trailed
the loader with
flashing lights
warning traf fic of
the slow-moving
Caterpillar traveling the busy highway.
Megan is survived by her father, Frank
Mazzitelle, and her mother, Karen Hudson,
who are both devastated by the loss of their
daughter. Searcy Denney Scarola Barnhart &
Shipley attorney Earl Denney successfully
brought this case to a mediation settlement
of $1,110,000. ■
Use of Forceps
Delivery Results in a
$63 Million VerdictContinued from page one.
During trial it became evident that since
1987, Dr. Eagleman never sent his pre-
natal records on any obstetrical patient
to Bethesda Memorial Hospital prior to
delivering the baby, including Jennifer
Korzeniowski. It was also uncontested
that Bethesda Memorial Hospital never
investigated the facts underlying the
administrative complaint filed against
Dr. Eagleman by AHCA.
Plaintiffs’ credentialing expert testified
that the falsification of medial records
was a serious matter, should have
prompted an investigation by Bethesda
Memorial Hospital, and that Dr.
Eagleman should have been supervised
by an obstetrician while treating his pa-
tients at Bethesda Memorial Hospital,
including Jennifer Korzeniowski.
“Bethesda Memorial Hospital had a
duty to supervise Dr. Eagleman’s
admission of patients for induction
and a duty to supervise circumstances
under which he performed forceps
delivery,” said attorney Searcy. “This
disaster was a direct manifestation of
the hospital’s failure to assure Dr.
Eagleman’s competency through
ongoing and careful review.”
“The sloppy practice that ruined this
little boy’s life had been going on at
Bethesda Memorial Hospital for more
than 10 years before Jennifer
Korzeniowski became a patient. If they
had just fulfilled their duty to protect
the safety of patients, this never would
have had a chance to occur,” said
Searcy. “It’s vital to the interests of
every consumer that ends up hospital-
ized that all hospitals take seriously
their duties to assure the competency
of their medical staff.” ■
Verdict Rendered AgainstDoctor “Frozen in Inactivity”
n February 26, 2004, a Tampa, Florida jury rendered a verdict in the amount of
$2.386 million on behalf of Chris and Rebeca Ipox. The case was brought on behalf
of the Ipoxes’ son, Christopher, who was born profoundly brain injured and who
lived with severe disabilities up until his death at age two and a half.
On May 28, 1999, Rebeca Ipox was admitted to St. Joseph’s Women’s Hospital for
induction of labor. Her pregnancy and prenatal testing had been completely normal,
but she had passed the 41st week of her pregnancy. Her doctor, Luciano Martinez,
M.D., therefore scheduled Rebeca’s admission to the hospital. There, he ordered
nurses to administer a drug called pitocin to start Rebeca’s contractions.
Over the course of the day, Rebeca’s contractions progressed in frequency and dura-
tion, causing what was referred to by many experts as “hyper-stimulation” of her
uterus. As a result, Rebeca’s baby, who had tolerated the contractions initially, began
to show signs of distress. Eventually, the baby’s heartbeat slowed dramatically,
dropping from a normal range of 140 beats per minute to as low as 45.
Nurses on duty for Rebeca’s labor and
delivery repeatedly urged Dr. Martinez
to consider delivering the baby by Ce-
sarean Section, but the doctor delayed
the decision to do so. Rather, he as-
cribed the baby’s reduced heartbeat to
an equipment malfunction. The nurses
finally summoned a supervisor, who
also urged Dr. Martinez to take action.
After having been “frozen in inactivity,”
the doctor finally called for a “stat” (im-
mediate) c-section, and Rebeca was
rushed to surgery.
Upon arriving in the operating room,
Dr. Martinez listened for the baby’s heartbeat and thought he heard it back in the
120-beat range. Concluding that the baby had recovered, he changed the status
of the c-section from a “stat” to an “ASAP.” Unfortunately, Dr. Martinez mistook
Rebeca’s heartbeat for that of her baby.
When baby Christopher was finally delivered, he was blue, limp, and not breathing.
He had suffered severe and permanent brain damage during labor due to oxygen
depravation. Over the two and a half years of his life, young Christopher was never
able to eat, talk, or even blink his own eyes. Christopher finally succumbed to pneu-
monia, a common complication suffered by profoundly brain damaged children.
Attorneys Karen Terry and John Shipley tried the case during the entire month of
February. And while the Ipox family would much prefer to have Christopher
back, the verdict represents a measure of justice for the tragedy they and their
baby endured. ■
3SEARCY DENNEY SCAROLA BARNHART & SHIPLEY, PA OF COUNSEL NEWSLETTER VOLUME 04 NUMBER 1
O
Rebeca Ipox with her son Christopher
4SEARCY DENNEY SCAROLA BARNHART & SHIPLEY, PA OF COUNSEL NEWSLETTER VOLUME 04 NUMBER 1
For 25 years, a tradition of...
...in the profession,in the community.
PERSONAL INJURY
WRONGFUL DEATH
MEDICAL MALPRACTICE
PRODUCT LIABILITY
AUTOMOBILE ACCIDENTS
COMMERCIAL LITIGATION
AIRLINE & RAILROAD DISASTERS
2139 PALM BEACH LAKES BLVD.WEST PALM BEACH
800-780-8607
THE TOWLE HOUSE517 N. CALHOUN ST.
TALLAHASSEE 888-549-7011
WWW.SEARCYLAW.COM
taking
■
■
Brother and Sister DrownIn Unprotected PoolO n the 12th day of June 2001, James Duffin and Lisa Meyer suffered the
worst fate that can befall a parent: the drowning deaths of their two chil-
dren, Tyler, age 5, and 4-year-old Amber.
The facts of this case are simple. Lisa Meyer was asleep with her children in
a rented cottage that was on the property of the defendant landlord, Louis
Pisani. Next to the cottage was a pool. The doors were locked, but the locks
were not the special, self-latching kind necessary to provide pool safety.
There was no pool fence or pool alarm. Lisa awoke around 10:30 a.m. The
kids were no longer in bed with her. She saw the
open door and raced outside. Both Tyler and
Amber were floating in the pool. They were
rushed to the hospital, but it was too late. Both
had to be taken off of life support.
On October 15, 2003, Searcy Denney Scarola
Barnhart & Shipley partner Sean Domnick ob-
tained a verdict for James and Lisa of
$1,141,464.68. The defendant had only a
$100,000 insurance policy. Although James and
Lisa offered twice to accept the policy limits, the
insurer, State Farm, never offered any money to
settle the case.
This tragedy was preventable if the defendant
landlord had taken even the most basic steps for
pool safety. After all, drowning deaths are one
of the leading causes of accidental deaths of
children. Under Florida law, a landlord who rents
out property with a pool on it has an obligation
to keep the common areas safe, including the areas around the pool. At
trial, plaintiff’s expert Gerald Dworkin explained to the jury that it is unrealis-
tic to believe that parents can supervise their children 24 hours a day. There-
fore, layers of protection around a pool are necessary. These layers include a
pool fence, a pool alarm or special locks on the doors leading to the pool
area. In this case, the landlord had taken none of these basic safety steps. In
addition, he violated local zoning laws that prohibited him from renting out
the cottage on his property.
The defendant, through his insurance company, blamed Lisa for not keeping
an eye on her children and tried to portray James as an “absentee” father.
The jury rejected the defendant’s argument, placing 70 percent of the re-
sponsibility on the landlord. Lisa Meyer was also represented by attorney
Todd Stewart. ■
Amber and Tyler
with their father,
James Duffin
SEARCY DENNEY SCAROLA BARNHART & SHIPLEY, PA 5 OF COUNSEL NEWSLETTER VOLUME 04 NUMBER 1
M
Error in Anesthesia DuringRoutine Surgery Causes Tragic Results arried over 50 years, Jane Client and her husband,
John, moved to Florida to enjoy their well-deserved re-
tirement. John Client had been a colonel in the Air Force
after the couple and their children had lived all over the
world. John and Jane had shared the challenges of raising
a handicapped son and they endured John‘s lengthy im-
prisonment as a POW in the Korean War, an ordeal for
which there had been no guarantee of survival. After his
tour in the military, John worked as an insurance execu-
tive, and then eventually planned his retirement alto-
gether. The couple looked forward to playing golf and
spending time with their children, grandchildren, and
their large circle of friends. Unfortunately, the dreams
they shared for their golden years ended abruptly in the
summer of 2000.
On the morning of July 11, 2000, Jane Client was
scheduled to have a routine knee replacement surgery
at Hospital X in Florida. Jane was cleared for general
anesthesia, but on the morning of the scheduled proce-
dure her anesthesiologist advised her that a spinal
anesthetic would be a better option. Jane agreed and
her surgery was performed.
According to the report dictated by her orthopedic doc-
tor, Jane‘s knee replacement surgery was completed
without complication. Jane was moved to a post-surgical
recovery unit and she was administered, on her doctor‘s
orders, medications called Lovenox and Torodol. Soon af-
terward, Jane began to complain of severe pain from her
lower back to her knees. Though such bilateral leg pain is
a classic indication of damage caused during spinal anes-
thesia, neither the doctor nor the nurses made the con-
nection. In addition, Jane‘s internist also examined her,
but he too failed to intervene on Jane‘s behalf. Finally, af-
ter several hours of Jane‘s horrible discomfort, a neurolo-
gist was called in for consultation. The neurologist
weighed the possibility of a spinal hematoma and recog-
nized the seriousness of such a diagnosis. He then made
an extraordinary effort to help Jane by traveling, in the
middle of the night, to a local neurosurgeon‘s house in
an attempt to get Jane the surgical attention she so des-
perately needed. Unfortunately, too much time had
passed and the bleed around Jane‘s spinal column had
caused devastating damage. Exacerbated by the blood-
thinning medications prescribed by her knee doctor,
the bleed in Jane‘s spinal column caused a condition
known as cauda equina, rendering her a near paraplegic
in excruciating pain.
Once Jane‘s injury stabilized, an investigation into her
medical care was commenced. It was learned that the
operative report, which noted no complications, failed to
indicate that Jane‘s spinal anesthesia had been described
as “difficult.“ In fact, the anesthesiologist had attempted to
administer the epidural anesthesia multiple times, leaving
“several bloody needle sticks.” Tragically, neither the
nurses nor the anesthesiologist communicated this vital
information to the surgeon. As a result of the collective
negligence of her medical providers, Jane Client is para-
lyzed and requires frequent hospitalizations for debilitating
pain. She has sought treatment from prominent specialists
throughout the country, but has been told repeatedly that
hers is a permanent condition. She has lost all bowel and
bladder function and requires catheterization, which her
husband does for her every six hours.
Jane‘s injuries now consume the life she shares with her
husband. Furthermore, John recently became seriously ill,
leaving his wife dependent upon others for her daily care.
Despite their plans for a leisurely and fun-filled retirement,
this lovely couple now struggles to manage together
through what should have been their golden years.
Shortly after legal proceedings began, Jane’s anesthesi-
ologist admitted liability, capitalizing on a $250,000
statutory damage cap provided under Florida law.
The remaining providers denied liability, forcing a
prolonged litigation led by attorney Bill Norton.
Testimony was offered in the case that Jane’s cata-
strophic injuries would require future medical costs
of approximately $4.7 million, over and above the
nearly $500,000 in expenses she had incurred already.
Shortly after mediation, the Defendants collectively
offered a confidential sum sufficient to settle the case.
The proceeds will provide the Clients with the resources
necessary to provide Jane with the crucial care she will
need for the remainder of her life. ■
6 OF COUNSEL NEWSLETTER VOLUME 04 NUMBER 1SEARCY DENNEY SCAROLA BARNHART & SHIPLEY, PA
Failure to Monitor CareResults In Amputation for Newborn Twin orn three months premature on June 28, 1999,
Diane weighed less than two-and-a-half pounds and
was somewhat depressed. Her APGAR scores were 2
at one minute and only 5 at five minutes. Normal
APGAR scores at two minutes would be closer to 10.
Clearly there were problems with this newborn that
required intensive care. Although Diane was born with
normal pulses bilaterally, she was quickly diagnosed
with respiratory distress, cardiac dysfunction, anemia,
sepsis and polyhydramnios.
The newborn was being main-
tained on a ventilator and had
several transfusions.
At the same time, Diane’s twin
sister Dee was also depressed
with similar difficulties associ-
ated with a premature birth.
Dee only weighed 1 pound 10
ounces and her APGAR scores
were 5 at one minute, 8 at
two minutes.
Due to difficulties with Diane’s
condition, an umbilical arterial
catheter (UAC) was inserted. A
UAC is used to provide a pain-
less way of drawing arterial
blood for testing and giving
medication, nutrition and fluids.
At 7 a.m. on June 30 – when Diane was just two days old
– hospital nurses noted that the infant’s right foot was
“blanched, purplish and her abdomen was distended”.
Nothing was done.
At 8 a.m., Diane’s right leg had turned dark in color.
Nothing was done.
One hour later, after being notified by nurses, the neo-
natologist told them to try nitro paste.
By 9:30 a.m., the right leg was dark and purple, but still
nothing was done except for the nitro paste. It wasn’t
until 11 a.m. that Diane’s UAC was finally removed. An
hour later, her right leg remained purplish and showed
no sign of recovery.
A noted complication of utilizing a UAC is that it can
cause vascular compromise. Prompt removal of the UAC
will almost immediately reverse the adverse affects of
the vascular compromise. The nurses had the responsi-
bility to monitor Diane’s vascular status and to promptly
notify her physician, but failed miserably in this regard.
Also, after the nurses notified him, the physician was
negligent in failing to see and assess Diane’s vascular
status and timely remove the UAC.
By July 14, Diane’s leg be-
came so compromised, an
above-the-knee amputation of
the right leg was necessary.
Had Diane been appropriately
assessed and the UAC re-
moved timely, this tragic loss
of her right leg could have
been prevented.
A rehabilitation physician
evaluated Diane as having
sustained a 40 percent im-
pairment of the whole per-
son and indicated she will
never be gainfully employed.
A life care plan was pre-
pared that demonstrated the
economic damages would be
in the multi-million dollar range.
In addition to the obvious physical limitations, the
emotional/psychological affects of this injury are sub-
stantial, including pain and suffering, disability or im-
pairment, disfigurement, mental anguish, inconve-
nience and loss of capacity for the basic enjoyment of
life. The impact on Diane’s twin sister Dee was also sig-
nificant.
What made this case particularly tragic is that the
damages could easily have been prevented. Searcy
Denney Scarola Barnhart & Shipley attorney Earl
Denney handled this case to conclusion, eventually
obtaining a recovery of $2.2 million. ■
Newborn twins Diane and Dee.
B
OF COUNSEL NEWSLETTER VOLUME 04 NUMBER 1SEARCY DENNEY SCAROLA BARNHART & SHIPLEY, PA
Shoddy Work and Lack of Inspections ByOrkin Expose Homeowners to Dangers ollowing an 8-day arbitration hearing in Jacksonville
last fall, Searcy Denney Scarola Barnhart & Shipley
clients Collier & Peggy Black were awarded a total
of $3 million from Orkin Exterminating, Inc., consisting
of $750,000 in compensatory damages and
$2,250,000 in punitive damages.
Mr. & Mrs. Black entered Orkin’s arbitration process af-
ter years of problems, including repeated and severe
termite invasions — more than 25 swarms in seven
years — and Orkin’s failure to obtain both the proper le-
gally required permits and inspections for repair work.
The unanimous decision by the 3-person arbitration
panel was announced on September 4, 2003.
According to the Interim Findings and Award in Collier
Black v. Orkin Exterminating, Inc. and Rollins, Inc.
(Orkin’s parent company), the arbitration tribunal found
with “clear and convincing evidence” that Orkin and
Rollins has “actively and knowingly participated in,
knowingly condoned, ratified or consented to the fol-
lowing types of gross and flagrant conduct evidencing
reckless disregard of human life, safety of persons ex-
posed to its dangerous effects, or a conscious indiffer-
ence to the consequences of such conduct.”
For example, Orkin and its subcontractor failed to
get a permit for repair work on a termite-damaged
exterior balcony on the Black’s home, nor did they
have the balcony inspected by county officials after
the repair job was completed. Subsequent examina-
tion of the “repaired” balcony proved that the unin-
spected work by the subcontractor was particularly
shoddy, and that the Black’s balcony was in imminent
danger of collapse.
“As we saw with last year’s tragedy in Chicago,
where 13 people died when the uninspected balcony
they were standing on collapsed, this kind of unli-
censed and non-permitted repair work can be
deadly. There are probably hundreds, if not thou-
sands, of Orkin customers in Florida and elsewhere
who may unknowingly be facing the same danger
every day,” said Searcy Denney Scarola Barnhart &
Shipley attorney Harry Shevin.
“Furthermore, Orkin representatives admitted under oath
that they have done nothing so far to notify any current
or former customers about unlicensed, uninspected and
non-permitted work that Orkin and its subcontractors
may have done on their family homes,” Shevin added.
In fact, in the testimony of Chris Gorecki, Orkin’s Vice
President of Quality Assurance and Claims, it was in-
ferred that the exterminating company’s failure to ob-
tain permits and screen subcontractors is not limited to
Florida. Despite the fact that Orkin has been aware of
these allegations since May 2001, Gorecki admitted that
the company has done “nothing” on a national basis to
address the permitting and background check issues.
In addition to the Black arbitration, there is a class ac-
tion arbitration with virtually identical allegations, filed
by Elizabeth & William Allen, also of Ponte Vedra Beach.
In Allen v. Orkin and Rollins, Inc., it is alleged that Orkin
failed to obtain the required building permits for repairs
on termite damage covered under the exterminating
company’s repair bond. As demonstrated in the Black
arbitration, it is Orkin’s pattern and practice to use con-
tractors (including those with criminal backgrounds) that
deliberately and consistently avoid the permitting and
inspection process required by law.
By not pulling permits, Orkin has avoided the inspection
process in all of Florida’s counties and potentially ex-
posed thousands of Florida homeowners to financial li-
ability and endangerment of life and safety. These
homeowners are unaware of the potential liabilities and
dangers of substandard “repair” work that is performed
without permits nor inspections.
Mr. & Mrs. Allen and Mr. & Mrs. Black are all repre-
sented by Chris Searcy, along with his Searcy Denney
Scarola Barnhart & Shipley legal team of Sean Domnick
and Harry Shevin. ■
F
“...Orkin has avoided the inspection process...and potentially exposed thousands of
Florida homeowners to financial liabilities and endangerment of life and safety.”
7
ealth care advance directives are instructions given for
one’s future care. No one else may write your health care
advance directive. Unlike most other types of advance
planning, a health care directive is silent unless you are
unable to participate in the medical decisions at the time
those decisions need to be made.
The law in Florida recognizes a competent adult’s right to
accept or refuse any type of medical care for any reason what-
soever. This right of self determination can survive incapacity
if such desire is communicated in a clear and convincing
manner prior to the onset of incapacity. Putting one’s desires
in writing with two witnesses, one of whom is not related
meets the legal requirements. In addition, it is important
that these desires be communicated to physicians and family
in an ongoing and thoughtful manner. Such action will help
avoid the potential of family conflict.
The Florida Statutes delineate three general types of health
care advance directives. The narrowest, termed a Living
Will, informs health care givers what type of care would be
elected or declined following diagnosis of a terminal condi-
tion; an end stage of a chronic condition; or a permanent
vegetative state. A diagnosis for any of these conditions
means there is no known successful cure. A Living Will may
prevent prolongation of the death or suffering by a patient
What are Health-Care Advance Directives?whose family may insist upon a misguided attempt to do ev-
erything possible, or who suffer from an inability to let go.
Failure to have personally stated clear and convincing direc-
tions to the contrary can allow a decision-maker to insist on
maintaining a dying condition indefinitely. This difficult situa-
tion has been heartbreakingly portrayed for more than thirteen
years in the case of Terri Schiavo.
The second type of advance directive is much broader and
thus far more helpful to a patient. In Florida, this directive is
called a Health Care Surrogate Designation; it may be referred
to as a Durable Power of Attorney for health care decisions in
other states, or even a Designated Proxy. This designation es-
tablishes and protects the author’s wishes regarding who is to
decide in the event of his incapacity to make a medical deci-
sion. Obviously, this person, the designee, should know and
accept such designation. This designation must be in writing
and be witnessed by two persons, neither of whom is the
designated person. One witness cannot be either related or
married to the author.
Once you have decided who should make decisions on your be-
half, it is incumbent upon you to inform the surrogate what deci-
sions you would like to be made. This process is not inflexible,
and ought to be routinely updated to reflect your knowledge
and understanding of your particular situation in life. This is your
responsibility; a surrogate may be called upon to defend a deci-
sion undertaken on your behalf. A history of ongoing discus-
sions enables your surrogate to knowledgeably communicate
your wishes. If you are diagnosed with an illness, your surrogate
should know the plan of care, the possible side effects, and the
prognosis. He/she should know everything you know about
your state of health.
The importance of a surrogate designation cannot be over-
stated because most cases of incapacity are consequent to
trauma and thus unforeseen. A person can be enjoying excel-
lent health, suffer a terrible car crash and never again have the
capacity to make health care decisions for himself. In these
situations, having a previously appointed surrogate can facili-
tate decisions regarding nursing home care, treatment, and
even transfer to other facilities.
Consider the patient diagnosed with Alzheimers who is not
in the end stages of the disease but who is in renal failure.
This patient could well be forced to undergo dialysis because
of his inability to refuse it. With no designated surrogate,
family members may feel compelled to impose this regimen,
8 OF COUNSEL NEWSLETTER VOLUME 04 NUMBER 1SEARCY DENNEY SCAROLA BARNHART & SHIPLEY, PA
“Your wishes cannot be carried out unless they’re communicated.”
H
“No person in historyenjoys a greater right of
self-determination regarding health care than a competent American adult;
however, that right is fragile. If not protected,
it can be lost in a second.”
which the patient may have refused given the choice. The earlier
appointment of a surrogate who had discussed which therapies
the patient would have wanted undertaken or refused in the
event of such a diagnosis could have obviated the imposition of
either burdensome or fruitless care.
The existence of written directives has no impact on insurance.
These directives are not necessary for admission or care at any facil-
ity, and the withdrawal or withholding of care as directed by these
documents does not impair or invalidate life insurance. These di-
rectives, if executed in Florida, are recognized in the other forty-
nine states. (They must be signed in the presence of two witnesses
neither of whom is the intended surrogate, and one of whom is
neither related nor a spouse).
It is important to note that surrogates do not have unlimited power.
Unless specifically directed, a surrogate may not consent to abor-
tion, sterilization, electroshock therapy, experimental treatment, or
voluntary admission to a mental hospital.
The third type of advance directive involves organ donation
upon one’s demise. A designation on a Florida driver’s li-
cense is considered sufficient. Again, such a decision
should be known to the family.
In summary, communication with the designated surrogate is ab-
solutely vital. The need to keep family and the treating physician
up to date on the status of one’s desires cannot be over
stressed. Wishes regarding care may change according to di-
agnosis, prognosis, age, family obligations, and of course, the
state of medical technology. In unusual circumstances, a law-
yer may be required, but in most cases, the following actions
are all that are necessary:
1. knowledge of one’s health status and what conditions
might reasonably be anticipated;
2. the kinds of care one would opt for and those thera-
pies that would not be chosen in any circumstance
(e.g. artificial sustenance and/or hydration, cardiac
and/or respiratory resuscitation);
3. the length of time beyond which nothing further is
desired (e.g. dialysis);
4. the kind of intervention then expected (e.g. Hospice);
5. communication of these desires (in writing if pos-
sible, although not necessary) to one’s surrogate,
family and doctors.
MARNIE R. PONCY, RN, ATTORNEY AT LAWTHE BIOETHICS LAW PROJECTTHE LEGAL AID SOCIETY OF PALM BEACH COUNTY, INC.
9 OF COUNSEL NEWSLETTER VOLUME 04 NUMBER 1SEARCY DENNEY SCAROLA BARNHART & SHIPLEY, PA
FREE COPIES OF THE ADVANCE DIRECTIVE PLAN OF CARE SHOWN ABOVE AVAILABLE ONLINE: www.LegalAidPBC.org
ance Block and James Gustafson
recently resolved a medical negli-
gence case involving the wrongful
death of 10-year-old L.H., who died
as a result of an untreated shunt
malfunction, for $2.5 million.
L.H. had cerebral palsy and hydro-
cephalus due to a brain bleed at
birth. Hydrocephalus is an excess ac-
cumulation of cerebral spinal fluid
(CSF) within the skull. The excess
fluid has no avenue of escape, which
causes an increase in intracranial
pressure. If untreated, it can lead to
death. Treatment for this condition
usually consists of the surgical place-
ment of a venticulo-peritoneal shunt,
a device that drains the excess fluid
from the ventricles in the brain to the
peritoneum, or abdominal cavity,
thereby restoring a normal amount
of CSF within the skull. L.H.’s initial
shunt was implanted when she was
just a few days old, and there was a
revision several years later.
However, shunts can malfunction,
and healthcare providers must pre-
sume the worst when confronted
with the signs and symptoms of
shunt malfunction. Symptoms of
shunt malfunction include severe
headache, nausea, vomiting, lethargy,
sleepiness, difficulty walking, and
abnormal behavior. A child that
presents with symptoms of shunt
malfunction requires immediate
evaluation. The work-up includes a
CT scan of the brain and a series of
plain x-rays the length of the shunt.
An increase in the size of the ven-
tricles of the brain, where CSF emits
from the brain, or evidence of an ob-
struction or disconnection of the
shunt, should be cause for intervention.
Only a neurosurgeon is qualified to rule
out and treat shunt malfunction after an
appropriate work-up is completed.
In the L.H. case, her mother took her
to the pediatrician’s office on a
weekday morning after she had
three episodes of vomiting and com-
plained of headaches, nausea and
sleepiness. In the doctor’s waiting
room, L.H.’s symptoms persisted.
She vomited one time while waiting
for the doctor, and continued to
complain of headaches and a “stiff”
neck. After her examination, the pe-
diatrician noted in the medical
records, “Need to rule out shunt
malfunction with history of head-
aches/emisis.” The pediatrician or-
dered a shunt series and CT scan, all
to be performed on a stat basis, and
sent L.H. to the hospital across the
street. The studies were interpreted
by a radiologist, who reported an ab-
normal CT scan with enlarged
ventricies, evidence of excess accu-
mulation of CSF. However, the radi-
ologist did not emphasize the de-
gree of ventricular enlargement nor
did she communicate other signs of
life-threatening CSF build-up. And
while the shunt series did not reveal
an obstructed or disconnected shunt,
the x-ray was not conclusive that the
shunt was working properly. Never-
theless, the pediatrician concluded
that L.H.’s condition was not life
threatening. So she decided not to
refer L.H. to a neurosurgeon and
simply instructed the family to return
Medical Experts Failure to DetectMalfunction Results in Child’s DeathL
10
home and either call her back or “go
to the ER” if the child’s symptoms
did not improve.
No more than three hours passed be-
fore L.H.’s mother called the pediatri-
cian, advising the doctor that L.H. was
again complaining of headaches and
was having difficulty taking liquid
Advil. Rather than referring L.H. to a
neurosurgeon or advising her to go to
an emergency department, the pedia-
trician instructed L.H.’s mother to ad-
minister suppositories. After following
the pediatrician’s instructions, L.H.’s
parents made a bed for her in the liv-
ing room so they could all sleep in the
same room and be close to L.H.
throughout the night. When L.H.’s
parents awoke the next morning, they
found their daughter dead in her bed.
Plaintiff’s liability witnesses included
world renowned experts in pediat-
rics, neuroradiology, neurosurgery,
and neuropathology. The standard
of care experts all testified that a
pediatrician is not qualified to rule
out shunt malfunction, and that the
pediatrician’s failure to obtain a neuro-
surgical evaluation for L.H. was a de-
parture from the standard of care. Ad-
ditionally, experts in neuroradiology
testified that the radiologist was
negligent Continued on next page.
OF COUNSEL NEWSLETTER VOLUME 04 NUMBER 1SEARCY DENNEY SCAROLA BARNHART & SHIPLEY, PA
“Only a neurosurgeon isqualified to rule out and treat
shunt malfunction after an appropriate work-up
is completed.”
11
for not clearly reporting her findings as
to L.H.’s hydrocephalus, and for failing
to diagnose and report the presence
of periventricular resorption of CSF, a
diagnostic clue of shunt malfunction
and excess accumulation of CSF.
Although there were no economic
damages that could legally be
claimed, L.H.’s parents were devas-
tated by the loss of their 10-year-old
daughter. While L.H. was disabled
and had special needs, she was
mainstreamed in school, was popular
among her friends and in her commu-
nity, and was a source of pride and in-
spiration to her parents and younger
brother. According to psychiatric ex-
perts on grief and bereavement re-
lated illnesses, L.H.’s parents both
suffer from depression and post-trau-
matic stress disorder as a result of the
sudden and unexpected death of their
daughter. The experts testified that
their grief was further complicated
because L.H. suffered excruciating
pain and distress before she died,
which they witnessed, and that from
the parents’ perspective, L.H.’s death
was unjust and preventable if only
reasonable medical care had been
provided. Further compounding the
parents’ grief were defense argu-
ments that they were comparatively
negligent for not calling L.H.’s neuro-
surgeon and for not taking L.H. to
an emergency department after they
had called the pediatrician.
The case was settled with both defen-
dants at mediation shortly before the
scheduled trial date. ■
Continued from previous page.
SEARCY DENNEY SCAROLA BARNHART & SHIPLEY, PA
Firm and AttorneysReceive Honors fromLegal Guide
Chris Searcy
Harry ShevinKaren TerrySean Domnick
John ShipleyGreg Barnhart
The law firm of Searcy Denney Scarola
Barnhart & Shipley was selected by the South
Florida Legal Guide as one of the top law firms
in the area. Three of the firm’s attorneys —
Chris Searcy, Greg Barnhart and John Shipley
— were selected as top lawyers. In addition,
attorneys Sean Domnick, Karen Terry, and
Harry Shevin were selected for the Guide’s
“Up & Comer” category.
According to a recent article in the south
Florida Sun-Sentinel, the attorneys listed in
the 2004 edition of the South Florida Legal
Guide “earned their placement as a result
of gaining top nods from their peers in
anonymous balloting held this spring....”
Questions on the two-page ballot asked
respondents whom they would recom-
mend to a family member.”
Lawyers listed in the South Florida Legal Guide
do not pay a fee to be included in the edition. ■
12SEARCY DENNEY SCAROLA BARNHART & SHIPLEY, PA OF COUNSEL NEWSLETTER VOLUME 04 NUMBER 1
On November 8-9, 2003, the Young Lawyers Section of the Academy of Florida
Trial Lawyers held its annual Earle Zehmer Mock Trial Competition at the Palm
Beach County Courthouse. Attorney Sia Baker-Barnes served as co-chair of the
competition. This year’s event featured twelve law student teams from Florida law
schools. The competitors participated in a personal injury trial before Fifteenth
Circuit Judges and senior attorneys during the two-day event. Justice Fred Lewis of
the Florida Supreme Court presided over the final round of the competition, which
was held on Sunday, November 9, 2003. ■
In November 2003, the F. Malcolm Cunningham,
Sr. Bar Association held its annual William
Holland Scholarship Luncheon. Searcy Denney
Scarola Barnhart & Shipley was a Platinum
Sponsor of the event, which is held annually to
support the Association's scholarship fund for
students preparing to take the bar examination.
Attorney Sia Baker-Barnes served as Chairperson
of the Scholarship Selection Committee. ■
(From left) Kalinthia Dillard, Pamela Wright,
Nelson Harvey, Jr. (scholarship recipient),
Sia Baker-Barnes, and Edrick Barnes.
F. MalcolmCunningham Sr.Bar AssociationScholarship Fund
Academy of Florida Trial LawyersMock Trial Competition
Sia Baker-Barnes (mock-trial co-chair) (far left) and Doug Eaton (mock trial co-chair)
(far right), pictured with the winning team from Stetson University College of Law.
Accolades...
The AV rating, which identifies a
lawyer with very high to preemi-
nent legal ability, is a reflection of
expertise, experience, integrity and
overall professional excellence.
Their ratings are established by
attorneys for attorneys. ■
James W.Gustafson, Jr.has been awardedan AV rating inMartindale-Hubbell
The Links White Rose Luncheon
On December 6, 2003, The West Palm Beach Chapter of The Links, Incorporated, held it’s
26th Annual White Rose Luncheon. Attorney Sia Baker-Barnes is a member of the organi-
zation, and served as chairperson for the event. This year’s luncheon honored three men
who have devoted their lives to children. Joseph Bernadel was honored for establishing a
Delray Beach school for underprivileged children. Wayne Barton was honored for opening
the Boca Raton Study Center and sponsoring college preparation tutorials and visits.
Carlton Carwright was honored for developing workshops to expose underprivileged chil-
dren to the arts. Chief Clarence D. Williams III of the Riviera Beach Police Department
served as the master of ceremonies, and Searcy Denney Scarola Barnhart & Shipley was a
Platinum Sponsor for the event. Each year, The Links, Inc. utilizes the proceeds from the
luncheon for college scholarships. ■
In November 2003, the law
firm of Searcy Denney Scarola
Barnhart & Shipley was rec-
ognized at the 17th Annual
National Philanthropy Day
awards luncheon, hosted by
the Association of Fundraising
Professionals. The firm was
nominated by the Legal Aid
Society of Palm Beach County. ■
(From left) Roxanne Jacobs,
President; Greg Barnhart;
Jan Rodusky, Event Chairman
NationalPhilanthropy Day
13SEARCY DENNEY SCAROLA BARNHART & SHIPLEY, PA OF COUNSEL NEWSLETTER VOLUME 04 NUMBER 1
The West Palm Beach Chapter of The Links, Inc.
14 OF COUNSEL NEWSLETTER VOLUME 04 NUMBER 1
On Friday, September 19, SDSBS employees and their family members participated in
The Leukemia & Lymphoma Society’s “Light the Night Walk.” The firm was a Gold
Sponsor of the event. The SDSBS team collected contributions before participating in
the three-mile walk along Flagler Drive in West Palm Beach. All of the proceeds raised
during the event will help to fund research for the Leukemia & Lymphoma Society. ■
(l. to r. front row): Bobby Marques, Donna Miller, Diana Rennie, Michelle White,
Steve and Gillian Smith; (l to r. second row): Earl Denney, Kimberly and Linda Miller;
(l to r. third row): Laurie Briggs, Jessica Covey, Elaine Bulger, and Joan Williams
On Saturday, October 18, SDSBS was a
Sapphire Sponsor of The Arc’s 7th Annual
Harvest Hoedown. Held at St. Catherine’s
Greek Orthodox Church in West Palm
Beach, guests enjoyed a barbecue dinner,
participated in both live and silent auc-
tions, and danced to the music of the band
Sierra. All proceeds from the event will
help The Arc provide services, advocacy,
and education for children and adults with
developmental disabilities. ■
On Sunday, October 19, SDSBS was a sponsor
of United Cerebral Palsy’s 15th Annual Great
Chef’s Tasting Party. Chefs from around Palm
Beach County prepared culinary delights in
hopes of being voted best in the categories of
Appetizer, Entree Seafood, Entree Non-Seafood,
Dessert, and Presentation. Guests of the event,
which was held at the West Palm Beach
Marriott, also selected their “People’s Choice.”
All proceeds from the event will help UCP serve
more than 1,200 individuals at over 60 facilities
throughout South Florida. ■
On Saturday, September 20, research associate Debbie Block,
paralegal Kevin Walsh, and legal assistant Janet Hernandez par-
ticipated in the “Great Grown-Up Spelling Bee.” Held at the
Boynton Beach Mall, the SDSBS team competed to raise
awareness for the Palm Beach County Literacy Coalition, which
hosted the event. ■
(l. to r.) Janet Hernandez, Kevin Walsh, and Debbie Block
Light the Night Walk
The Arc’sHarvest Hoedown:“Jewels, Jeans & Jazz”
Taking...
Great Grown-Up Spelling Bee
Great Chefs’Tasting Party benefitsUnited Cerebral Palsy
OF COUNSEL NEWSLETTER VOLUME 03 NUMBER 314
Speaking Opportunities:Attorney Chris Searcy has spoken to various groups on
subjects they requested he address in his speech:
- Academy of Florida Trial Lawyers2003 Auto Negligence SeminarJury Selection in the Auto Case
- Louisiana Trial Lawyers Association 2003 Annual Convention
Death and Destruction from Highway Construction
- Academy of Florida Trial Lawyers3rd Annual Al J. Cone Trial Advocacy InstituteVoir Dire from the Plaintiff Side
- Bethesda Memorial Hospital Nurses Seminar - “Reaching Out - Touching Lives” How to Avoid Medical Malpractice
Harry Shevin was a moderator for the Palm Beach County
Trial Lawyers Association’s seminar entitled “Winningwith Expert Witnesses,” which was presented in the fall
of 2003. Mr. Shevin serves on the Board of Directors of
the Palm Beach County Trial Lawyers Association and is
Chairman of the Seminar Committee. ■
In December 2003, Lance Block participated in a
debate sponsored by the Center for Lifetime Learn-
ing, which is af filiated with Palm Beach Community
College. The topic of the debate was “Tort Reform -The Importance of the Civil Justice System.” ■
Chris Searcy
Attorney Bill Norton was a featured speaker at the Acad-emy of Florida Trial Lawyers Winter Ski Seminar in BeaverCreek, Colorado. Mr. Norton provided the legal perspec-tive on how to recognize a securities case in a programentitled “Recognizing the Securities Case, ‘My ClientLost Money in the Market’ Join the Club, Who Didn’t?A Primer on Securities Cases.” Mr. Norton is frequentlyasked to lecture on various topics involving medicalnegligence, personal injury and securities matters. ■
Lance Block
Bill Norton
Harry Shevin
In September 2003, David White was a guest
speaker at the Society of Financial Service Pro-
fessionals - Miami Chapter. He spoke about
“Disability and ERISA.” ■
David White
Holiday Gifting fromSearcy Denney ScarolaBarnhart & Shipley
Searcy Denney Scarola Barnhart & Shipley
employees showed their spirit and goodwill
by supporting nine non-profit organizations
over the holidays. Spearheaded by paralegal
Laurie Briggs and accounting assistant Dawn
Pitts, the firm’s employees and family mem-
bers rallied to bring holiday cheer to families
in need. The group shopped, sorted, and
wrapped gifts and food items for nearly 30
adults and 50 children.
Items purchased/donated included: Clothing,
toys, toiletries, towels, educational games,
CDs, DVDs, gift certificates for food, and
more. Employees also gathered, thanks to the
organizational efforts of medical consulting
clerk Jackie Pitts, to hand-make stockings and
fill them with stocking-stuffers for each child.
Organizations through which gifts were
distributed included:
■ Children’s Home Society
■ Child Outreach
■ Edward Healey Rehabilitation
and Nursing Home
■ Esreh Youth and Family Center
■ Family Hope
■ Farmworkers Coordinating Council
■ Mayan-Guatemalan Center
■ Operation Hope
■ Vickers House
(l-r) Melissa Medlin, William Shannon,Jackie Pitts and Dawn Pitts
15 OF COUNSEL NEWSLETTER VOLUME 04 NUMBER 1SEARCY DENNEY SCAROLA BARNHART & SHIPLEY, PA
WEST PALM BEACH,FLORIDA
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Volume 04, No. 1
www.searcylaw.comLog onto
for the latest newsand information aboutSearcy Denney ScarolaBarnhart & Shipley.
In this issue:
$63 Million VerdictAs a Result ofOutlawed ForcepsDelivery
Verdict RenderedAgainst Doctor“Frozen inInactivity”
Brother and SisterDrown InUnprotected Pool
Page One
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